Rajasthan High Court
Kanhiram @ Kanhilal vs State Of Rajasthan ... on 6 September, 2023
Bench: Anil Kumar Upman
[2023:RJ-JP:24336]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 10864/2023
Kanhiram @ Kanhilal, Aged About 27 Years, R/o Village
Rampuriya P.s. Bhalta Tehsil Aklera District Jhalawar. (At Present
Confined In Central Jail Kota) (Raj.)
----Petitioner
Versus
State of Rajasthan, Through Special PP
----Respondent
For Petitioner(s) : Mr. Rohit Khandelwal
For Respondent(s) : Mr. Tej Prakash Sharma, Special
Public Prosecutor
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
06/09/2023
1. The instant bail application has been filed under Section 439
Cr.P.C. on behalf of the accused-petitioner Kanhiram @ Kanhilal
who has been in custody since 03.10.2022 in connection with FIR
No.08/2022 registered at Police Station CBN Kota District Kota for
offences under Sections 8/21 and 8/29 of the NDPS Act. After
completion of investigation, charge-sheet has been filed in the
matter before the learned court below.
2. It is contended by learned counsel for the petitioner that the
accused petitioner has falsely been implicated in this case. He
contends that the petitioner has nothing to do with the alleged
recovery of contraband heroine. As per the prosecution case,
contraband heroine weighing 75 grams and 270 grams were
[2023:RJ-JP:24336] (2 of 4) [CRLMB-10864/2023]
recovered from Kanhiram, petitioner herein and Mohan Lal
respectively. The co-accused Mangilal, who was arrested along
with other Mohanlal and petitioner, has been granted bail by a
Co-ordinate Bench of this Court. He submits that the work of
drawing sample was not done in accordance with the provisions of
sub-section 2 of Section 52A of the NDPS Act. He argues that the
process of drawing of samples has to be in the presence and
under the supervision of the Magistrate and the entire exercise
has to be certified by him to be correct. However, there is total
non-compliance of this provision of law. He further submits that
looking to the quantity recovered from individual possession of the
petitioner, it is clear that the alleged recovered contraband is
intermediate quantity and as such, the provisions of Section 37 of
the NDPS Act do not apply to the present case. Reliance has been
placed on the following judgments:- (1) Union of India vs
Mohanlal & Anr : (2016) 3 SCC 3749 and (2) Mangilal vs State of
Madhya Pradesh: 2023 SCC online SC 862.
3. He submits that after investigation, police has filed
chargesheet in the matter and trial will take considerable time in
its conclusion. The petitioner has no criminal antecedents. He
thus, prays that the instant application for bail may be accepted
and the petitioner may be released on bail.
4. Per contra, learned Special Public Prosecutor vehemently and
fervently opposes the bail application. He submits that the total
recovered contraband heroine affected from the accused persons
on 03.10.2022 by the police team, comes under the definition of
[2023:RJ-JP:24336] (3 of 4) [CRLMB-10864/2023]
commercial quantity and thus, considering the rigour of Section 37
of the NDPS Act, bail should not be granted.
5. I have heard and considered the submissions advanced by
counsel for the petitioner as well as learned Special Public
Prosecutor and perusal the material available on record.
6. The process of drawing samples has not been done in the
presence and under the supervision of the Magistrate which is not
in conformity with the law laid down by Hon'ble Apex Court in the
case of Union of India vs Mohanlal (supra). Further, contraband
heroine weighing 270 grams was recovered from the possession of
the accused Mohanlal whereas 75 grams heroine was recovered
from the accused petitioner which is intermediate quantity.
7. Considering the overall facts and circumstances of the case
especially the fact that after completion of investigation,
chargesheet has been filed, co-accused Mangilal have been
granted bail by coordinate Bench of this Court, absence of criminal
antecedents, as per the FIR, it appears that the mandatory
provisions of Section 52A of the NPDS Act and the guidelines laid
down by the Hon'ble Supreme Court in the case of Union of India
vs Mohanlal reported in (2016) 3 SCC 379 have not been followed
in the present case, but without making any comments on the
merits/demerits of the case, I deem it just and proper to accept
the instant bail application.
[2023:RJ-JP:24336] (4 of 4) [CRLMB-10864/2023]
8. Thus, the bail application is allowed and it is directed that
accused petitioner Kanhiram @ Kanhilal arrested in connection
with FIR No.08/2022 PS CBN Kota, District Kota shall be released
on bail provided he furnishes a personal bond in the sum of
Rs.50,000/- (Rupees Fifty Thousand only) together with two
sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand
only) each to the satisfaction of the learned trial court with the
stipulation that he shall appear before that Court and any court to
which the matter is transferred, on all subsequent dates of hearing
and as and when called upon to do so.
9. It is made clear that the petitioner shall not involve in any
other similar offence during currency of the bail. In case, breach
of this condition is reported or come to the notice of the Court, the
trial court can cancel the bail granted to him by this Court.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/16
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